NJ Supreme Court Denies Blogger Journalism Shield-Law Protection

The New Jersey Supreme Court has ruled against a blogger who refused to identify confidential sources under the state’s journalism shield laws. The court’s decision, while codifying New Jersey shield law protections for writers, raised objections from advocates for free speech and freedom of the press.

The NJSC rendered its decision on June 6 after hearing arguments in February in Too Much Media LLC v. Shellee Hale. Although the court determined New Jersey’s shield law did not apply to defendant Shellee Hale, it overturned portions of an April 2010 appellate court decision that required writers seeking shield-law protections to possess traditional media credentials and prove they adhere to professional standards of journalism.

Jeffrey M. Pollock, Esq., the Fox Rothschild LLP attorney representing Hale, says the court failed to protect Hale’s rights.

“It is problematic that Shellee Hale was addressing the fundamental liberty right of free speech, that the Court felt compelled in its own words to clarify and provide guidance on how the Shield Law applies to the Internet, but so far they have not permitted Shellee the right to prove that she can meet this new standard,” said Pollock. “Notably, this is a standard she could not have anticipated.”

No Absolute Privilege
New Jersey-based Too Much Media sued Hale for defamation and sought the identity of her confidential source in 2008. A trial court found in favor of the company, as did the 2010 appellate court.

The suit against Hale was initiated after she posted a blog comment asserting TMM had experienced a security breach related to software the company employed to track information of customers who had joined pornographic Web sites anonymously.

Hale, a writer investigating the financial dealings of the online adult-entertainment industry, wrote a series of posts on an Internet message board in which she stated TMM customer information—including client names and their credit card details—had been exposed, which she stated violated New Jersey law. She also wrote TMM profited from the breach and that members of the company’s top management team had threatened individuals, including her confidential source, who publicly voiced suspicions over TMM’s conduct.

“We . . . do not believe that the legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards,” the New Jersey Supreme Court justices stated in its 46-page opinion.

‘Whim of a Judge’
Jim Lakely, co-director of the Center for the Digital Economy at The Heartland Institute, which publishes Infotech & Telecom News, says the New Jersey decision begs more questions than it answers.

“Putting aside any questions about the wisdom of shield laws, they should not exist to protect only certain classes of Americans a court defines as ‘journalists.’ Freedom of the press is not truly free if the definition of ‘press’ is left up to the whim of a judge,” he said.

“Neither should it matter where journalism is practiced,” Lakely continued. “The court decided that the comment section of a blog or a message board is not a place of journalism, but merely ‘forums for conversation.’ But what if a reporter from ABC News leaves a comment in the practice of journalism? Is that covered?” he asked.

“The court’s attempt to define proper venues of protected journalistic practices in a constantly changing digital environment is a fool’s errand and a threat to Americans’ protections of free speech and freedom of the press,” Lakely said.

‘Principles Matter’
Maureen Martin, chief legal analyst for The Heartland Institute, says journalism shield laws are a bad idea in the first place. “In my opinion, there should be a free market in information, and that means shield laws applicable to anyone are ill-advised,” she said. "I am speaking as a former reporter for a mainstream newspaper, now a lawyer.”

Martin cites the case of New York Times reporter Judith Miller, who went to jail rather than identify her source for information leaking the identity of Central Intelligence employee Valerie Plame. “That source, Scooter Libby, later released her from her promise of confidentiality, and his identity was then made public,” Martin said.

“I realize this calls for great personal sacrifice on the part of the journalist,” Martin added. “But principles matter. Furthermore, oftentimes the identity of a ‘secret’ source is a poorly kept secret. Prosecutors who can figure it out without trying to jail a reporter will hesitate to do so if they know this measure will attract constant media attention,” she said.

‘Constitutional Backwater’
There are measures courts can take—such as sealing records of testimony—to protect the confidentiality of a source identified during litigation, Martin notes.

She says the New Jersey court correctly identified a key practical problem of TMM v. Hale: “Who is a mainstream journalist, and who is not? Frankly, given the intellectual dishonesty of many so-called mainstream journalists, I am not in favor of shielding them,” she said. “It’s too easy for them to report ‘unidentified sources say’ when they are actually quoting only themselves.”

Pollock, however, would prefer the privilege remain and be extended.

“It is unfortunate that the New Jersey Supreme Court did not have the courage and foresight to lead the way on protection of free speech on the Internet, but rather has taken a restrictive view and relegated New Jersey to a Constitutional backwater;” he said.

Bruce Edward Walker (bwalker@heartland.org) is managing editor of Infotech & Telecom News.

Internet Info:

“Too Much Media LLC v. Shellee Hale Decision,” New Jersey Supreme Court, June 6, 2011: http://www.heartland.org/infotech-news.org/article/30318/Too_Much_Media_LLC_v_Shellee_Hale_Decision.html

“Blogger Seeks Shield Law Protection in Jersey Supreme Court,” Bruce Edward Walker, Infotech & Telecom News, April 2011: http://www.heartland.org/infotech-news.org/article/29473/Blogger_Seeks_Shield_Law_Protection_in_Jersey_Supreme_Court_.html